CHACKO JOSEPH Vs. VARGHESE MARKOSE

JUDGEMENT

(1.) This appeal arises out of a suit for compensation for the loss alleged to have been sustained by the plaintiff as a consequence of the fraudulent misrepresentation made by the defendant for inducing him to accept the sale deed Ext. D dated 19.10.1123. Under this document, the A schedule property was conveyed to the plaintiff by defendants 1 to 4 for a consideration of I. Rs. 12771 Chuckrums 26 cash 8 (S. Rs. 13,000). The property thus conveyed was specified as lying within the well defined boundaries mentioned in the document. The extent of the property also was given as 12 acres and 81 cents. A special indemnity clause was also inserted in the sale deed and it was to the effect that if the property is seen to be subject to any prior encumbrance, the same would be cleared by the vendors themselves and in case of their failure to do so, the vendee will be entitled to recover the consequent loss that may be sustained by the vendee from the 1st defendant and also as a charge on the B schedule property. It transpired later on that 64 cents comprised in Sy. No. 1011/3D and 1 acre 86 cents comprised in Sy. No. 1011/2 forming portions of the property covered by the sale deed Ext. D, had already been dealt with under a usufructuary mortgage and lease back. On the strength of the lease, the mortgagee sued and obtained the decree in O.S. No. 88/1124 of the Muvattupuzha District Munsiffs Court for recovery of the rest due to him. In execution of that decree, the court appointed a receiver to take possession of the aforesaid items and the receiver actually took possession of the same on 25.9.1950. Because of these developments, the plaintiff prayed for a decree compelling the defendants to pay off the pre-existing liabilities on the two items mentioned above, and to secure possession of these items for the plaintiff. In the alternative a decree for recovery of a sum of Rs. 2500/- as the value of these items was also claimed by the plaintiff. These matters are covered by issues 8, 10 and 13 in the case. At the time of the final arguments the parties appear to have agreed that the question covered by these issues can be disposed of only after the termination of the execution proceedings in O.S. No. 88 of 1124. It is so stated in Para.7 of the lower courts judgment and on the basis of the agreement between the parties, the questions covered by these issues have been left open to be decided in a separate suit. Those questions do not therefore arise for consideration in the present appeal.

(2.) The main question that is agitated in the appeal relates to the plaintiffs claim based on his complaint that there has been a deficiency in the extent of the property represented to be conveyed under Ext. D. According to the plaintiff the fact that there is such a deficiency came to his notice only when he got the property measured in Medom 1125 i.e., nearly two years subsequent to the date of the sale deed. It is contended that the sale evidenced by Ext. D was negotiated on the basis of the extent of the property as represented by the defendants and that the price was calculated and fixed at Rs. 10/- per cent and that out of the total sale consideration of Rs. 12,810/- a sum of Rs. 12,771 Chuckrums 26 cash 8 was alone mentioned. In the document, the balance of Rs. 38 Chuckrum 1 cash 8 having been paid as ready cash to the defendants. It is also alleged by the plaintiff that at the time of the execution of the sale deed the defendants had agreed that they would make good any deficiency in the extent of the property conveyed in case it is found that there is such a deficiency. At the time of the measurement of the property in Medom 1125, it was found that in the property put in the possession of the plaintiff as vendee under Ext. D there is a deficiency of 3 acres and 35 cents. It is because the defendants have not made good this deficiency and are not agreeable to pay back the value of the said shortage of 3 acres and 35 cents that the plaintiff was compelled to institute the present suit. It is alleged that the plot of 3 acres and 35 cents necessary to make up the deficiency in the property conveyed under Ext. D is comprised in Sy. No. 982/1 and is in the possession of the defendants. The plaintiff has, therefore, prayed for a decree for recovery of this plot together with mesne profits at the rate of Rs. 154 As. 4 per year or, in the alternative, for recovery of a sum of Rs. 3,350 as the value of the property together with 6% interest thereon, from the defendants.

(3.) The defendants resisted the suit and contended that the sale was not negotiated on the basis of the extent of the property in terms of acre and cents, but on the other hand, what the parties bargained to sell and purchase was a definite plot lying within well defined boundaries as described in the sale deed and a lump amount was fixed as the price of this plot as a whole. All the other allegations in the plaint were also denied by the defendants. The Trial Court negatived the plaintiffs allegation that in concluding the contract for sale the parties calculated and settled the price at the rate of Rs. 10/- per cent. All the same the court came to the conclusion that the defendants were fully aware that the property lying within the boundaries mentioned in Ext. D was not 12 acres and 81 cents in extent, as stated therein, and that they fraudulently represented to the plaintiff that the extent is 12 acres and 81 cents. It was also found that the liability to compensate for the consequent loss is covered by the indemnity clause in the sale deed. On the strength of these findings, the plaintiff was given a decree for recovery of a sum of Rs. 3340 as the proportionate price of the actual deficiency in extent which was found to be 3 acres and 35 cents. Interest on this amount at 6% was also allowed from the date of the sale deed. It is against this decree that the 2nd defendant has preferred this appeal. The plaintiff respondent has filed a memorandum of objections against the decree disallowing his costs and against the findings recorded against him by the lower court.